Why ABC settled a case they knew they would win — and why the ...
Since 2012, the U.S. Dept. of Justice has defined rape as bodily “penetration, no matter how slight… with any body part or object… without the consent of the victim.” To be redundant, no penis is required.
The Legal Battle
On May 9, 2023, a New York jury determined that Donald Trump had shoved his unwelcome fingers inside E. Jean Carroll’s genitals, after he pushed her against a Bergdorf Goodman dressing room wall, and that he later defamed her. Trump’s ‘what’s a little groping among friends’ defense argued that $5m in damages was excessive because the jury didn’t say Trump raped Carroll, only that he sexually assaulted her.
Trump’s claim led presiding U.S. District Judge Lewis Kaplan to clarify in a memorandum that, in legal parlance, inserting anything into a woman’s vagina against her will, including Trump’s nasty fingers, was, indeed, rape:
The finding that Ms. Carroll failed to prove that she was ‘raped’ within the meaning of the New York Penal Law does not mean that she failed to prove that Mr. Trump ‘raped’ her as many people commonly understand the word ‘rape…’ Indeed, as the evidence at trial recounted below makes clear, the jury found that Mr. Trump in fact did exactly that.
ABC's Decision
Months after Kaplan’s clarification of the jury’s finding, ABC News anchor George Stephanopoulos said on the air that Trump was found liable for rape. Because Trump relies on frivolous lawsuits to silence his critics and uses protracted and unethical litigation as his bullwhip, he sued ABC for defamation.
Given Kaplan’s clarification that the jury found Trump had legally raped Carroll, Stephanopoulos’s on-air statement was judgement proof. And yet, to protect separate corporate interests of its parent company, Disney, ABC News decided to ‘settle’ the case, pay Trump $15m, and officially apologize for telling the truth.
Lessons Learned
Under controlling jurisprudence on the free press, Times v. Sullivan, Trump had no chance of winning the case because he would have to prove Stephanopoulos spoke with reckless disregard of the truth, a finding blocked by the presiding judge’s clarification of ‘rape.’ ABC’s decision to pay Trump and apologize nonetheless is an Orwellian warning that, when covering an ascendent fascist, up will be down and down will be up, and only Trump can decide which is which.
The Legal Landscape
ABC’s capitulation is a study in contrast with another 1st Amendment case from last week. In Flynn v. Wilson, right wing provocateur Mike Flynn sued Rick Wilson, one of the founders of the Lincoln Project, a group of republicans committed to fighting Trump’s criminality.
For context, Flynn was Trump’s former national security advisor who championed using the military to overthrow the federal government after Biden won in 2020. Flynn also admitted he lied to the FBI about communications with Russia in order to protect Trump, a performative ‘admission’ since the FBI already had him on a wiretap doing what he claimed he hadn’t.
Following Flynn’s dalliance with Putin, Wilson referred to him on X as "Putin employee Mike Flynn," retweeting separately that, "FYI, Mike Flynn is Q."
